In re Cassandra H.
Filed 3/5/12 In re Cassandra H. CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In
re CASSANDRA H.,
a
Person Coming Under the Juvenile Court Law.
B232973
(Los Angeles County
Super. Ct. No. CK62947)
LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JOSIE
H., et al.,
Defendants and Appellants.
APPEAL from an order of the Superior
Court for Los
Angeles County, Timothy R. Saito, Judge.
Reversed.
Leslie A. Barry, under appointment by
the Court of Appeal, for Defendant and Appellant David H.
Nancy Rabin Brucker, under appointment
by the Court of Appeal, for Defendant and Appellant Josie H.
Amir Pichavai for Plaintiff and
Respondent.
David H. (father) and Josie H.
(mother) (collectively, the parents) appeal from an order of the
Cassandra, a dependent child of the court under Welfare and Institutions Code
section 300, subdivision (b). The parents
contend there is insufficient evidence to support the juvenile court’s
jurisdictional finding because there was no evidence at the time of the hearing
that the parents could not adequately supervise and protect Cassandra.
Angeles County Department of Children and Family Services (DCFS) defends
the jurisdictional finding, but also moves to dismiss the parents’ appeal on
the ground that it is moot because the juvenile court has terminated
jurisdiction. We conclude that the
appeal is not moot, and that there was insufficient evidence to support the
jurisdictional finding. Accordingly, we
reverse the order declaring Cassandra a dependent child of the court.
BACKGROUND
Cassandra and her two younger siblings
were first declared dependent children of the court in 2006 when the juvenile
court sustained a petition alleging that mother struck Cassandra’s back and
body with her hand and pulled Cassandra’s hair (§ 300, subd. (b)) and
emotionally abused the children by yelling and cursing at them and blaming
Cassandra for all of the family’s problems (§ 300, subd. (c)). The family received family
family maintenance services for a year.
The case was closed on May 14, 2007, after mother completed her
court-ordered anger management classes, parenting education, and individual
counseling, and mother and father attended court-ordered conjoint
counseling. During the year of family maintenance
services, Cassandra was hospitalized for the first time after she threatened to
kill her family, neighbors, and herself.
She was nine years old.
Two years later, in September 2009,
the parents called the police after Cassandra hit her sister (who was seven) in
the face. She spent a week at juvenile
hall. While there, she told an employee
of the Department of Mental Health that she suffered physical and emotional abuse
by mother. That employee reported
Cassandra’s allegations to DCFS, which conducted an investigation and
determined the allegations were unfounded.
DCFS noted that Cassandra was seeing a therapist twice a week, and that
“[t]he parents are proactive in getting the necessary help for the child.” A voluntary family maintenance case was
opened, and remained open as to Cassandra through the filing of the petition at
issue in this appeal.
Cassandra was hospitalized again in
April 2010 after she attacked her mother.
The parents once again called the police, who took her to Harbor UCLA;
she was transferred to Del Amo Hospital and placed on a 72-hour hold. At that time, it was recommended that
Cassandra go on medication, but the parents declined because they were
concerned about possible side effects and the lack of research on how the
medication affected developing brains.
After Cassandra was released from the
hospital, the parents voluntarily agreed to have her placed in a foster
home. In July 2010, while she was living
in the foster home, Cassandra was once again placed on a 72-hour hold at a
psychiatric hospital, after which she returned to the foster home. Cassandra was returned to the parents’ home a
month later so she could begin eighth grade at her original school. Two months later, in October 2010, Cassandra
was hospitalized again after she threatened to jump from a second story
window. The psychiatrist who examined
her did not believe her threat was credible, and believed it was a manipulative
act. She was released the following
day. By January 2011, Cassandra began to
refuse to meet with her therapist and was acting defiantly when asked to follow
directions or complete household tasks and chores. Despite the parents’ efforts, she also
refused to attend school. The parents
told the DCFS social worker that Cassandra was out of control and not
disciplinable; father said, “Whatever we’re doing, it’s not working.”
DCFS conducted a safety assessment and
held a team decision-making meeting in February 2011. According to DCFS, the parents agreed at the
meeting that it would be in Cassandra’s best interest to be detained from their
home and placed in a residential facility.
subdivision (b), alleging (as amended) that Cassandra exhibited aggressive,
threatening, and assaultive behavior resulting in three psychiatric
hospitalizations and injuries to mother, and that the parents “have a limited
ability to adequately supervise and protect the child, which places the child
at risk of physical and emotional harm.”
At the detention hearing on February
23, 2011, the parents asked that Cassandra be released to them, saying that
they have medical insurance and are able to handle Cassandra’s condition
without DCFS supervision. The juvenile
court found that Cassandra was a child described under section 300, but, over
DCFS’s objection, ordered that she be placed with the parents under the
condition that she continue her therapy and keep taking her prescribed
medication.
Cassandra was hospitalized three more
times in March 2011. On March 5,
Cassandra got upset with her sister and started to yell at her. Mother asked Cassandra to take a ride with
her, to try to calm her down. When they
got home Cassandra was still upset and began acting depressed. The parents tried to contact the “PET team”
to get her assessed, but could not reach them, so they watched her to make sure
she did not leave the house. After a
while, Cassandra told them she was feeling better and was not going to try to
leave, so the parents relaxed their vigil, at which point Cassandra ran out the
door. Mother tried to catch her, but
when she lost sight of Cassandra, she called 911. The police found her and took her to Del Amo
Hospital to be assessed; she was placed on a section 5150 hold.
Cassandra was hospitalized for the
second time in March after she physically assaulted mother on March 21. Mother immediately called the Psychiatric
Mobile Response Team (PMRT), and was told to contact the police. Cassandra calmed down when the police
arrived, but when the PMRT arrived, she got angry again and would not
respond. The “PET team” advised mother
to call the police again; the police then assisted the “PET team” in taking
Cassandra to Del Amo Hospital.
When Cassandra returned home from Del
Amo Hospital on March 29, mother told her to get ready for bed because she had
to go to school the next day. Cassandra
became irate and said she would rather be dead than go to school. When she later told mother she had taken
seven to nine Tylenol pills and wanted to end her life, she was rushed to the
hospital, where it was determined she had taken only two or three pills.
By April 29, 2011, when DCFS filed a
last minute information for the court in anticipation of the
jurisdiction/disposition hearing on May 2, the parents had requested an
assessment for an Individualized Education Plan (IEP). The assessment was scheduled for May 24,
2011, but it was unclear whether Cassandra could be adequately assessed due to
her resistance and refusal to participate in most of her treatment. An IEP is necessary for Cassandra to receive
school based services such as AB3632.
At the jurisdiction/disposition
hearing, the attorneys for mother and father asked that the petition be
dismissed. They argued that the case was
not filed because of anything that the parents had done to Cassandra, but
rather because she has special needs for which the parents need
assistance. But they contended that the
parents need services from the Department of Mental Health, not DCFS. The court denied the parents’ request and
sustained the petition as amended and declared Cassandra a dependent child of
the court under section 300. Mother and
father each filed timely notices of appeal
from the jurisdictional order.
A.
On January 31, 2012, after briefing
was completed, DCFS moved to dismiss the parents’ appeal on mootness
grounds. Accompanying the motion was an
application to take additional evidence, consisting of a minute order from the juvenile
court terminating its jurisdiction and a status review report filed in the
juvenile court by DCFS on January 26, 2012.
We grant the application but deny the motion.
1. Factual
Background for Motion
In the status review report, DCFS
reported that Cassandra was hospitalized twice more after the
jurisdiction/disposition hearing, on June 6, 2011 and July 5, 2011. She began the ninth grade at Malaga Cove
Academy, a special education school run by the Los Angeles County Office of
Education for children who have difficulty accessing their education because of
emotional problems. In early October, a
meeting was held at Malaga Cove with the Department of Mental Health. The Department of Mental Health presented a
report stating that Cassandra was found to be eligible for mental health
services and that her evaluation indicated that she was in need of
residential facility, and the Department of Mental Health arranged for her to
be placed in a residential program in Colorado.
She was placed in the program on December 7, 2011, with an expected
program completion date in June 2012.
In mid-January 2012, the DCFS social
worker spoke to mother, who reported that Cassandra was doing well in the
residential program. Mother also told
the social worker that when Cassandra returns home after completing the
program, the parents would work with the school district and the Department of
Mental Health to make sure Cassandra got the support she needed.
Based upon its assessment of future
risk, DCFS determined there was no need to continue services to the family and
recommended to the juvenile court that it terminate jurisdiction. The juvenile court entered a minute order on
January 26, 2012 finding that jurisdiction was no longer necessary and
terminating jurisdiction.
2.
DCFS argues that mother’s and father’s
appeals should be dismissed because the juvenile court has terminated
jurisdiction and Cassandra is receiving the treatment needed to obviate any
risk of harm to her, and therefore any reversal of the jurisdictional order
would be academic and without practical effect.
The parents oppose the motion to dismiss, arguing that a dependency appeal
ordinarily will not be dismissed as moot when the asserted error undermines the
juvenile court’s jurisdictional findings.
(Citing In re Joshua C. (1994)
24 Cal.App.4th 1544, 1547.) They also
contend that reversal of the jurisdictional order would have a practical
effect, because it would result in the striking of an order that could be used
against the parents in any future dependency case involving their
children. There is merit in the parents’
argument.
While DCFS is correct that “[w]hen no
effective relief can be granted, an appeal is moot and will be dismissed” (
1313, 1315), in this case reversal of the jurisdictional order would provide
effective relief. As the parents note,
the fact that a dependency petition was sustained against the parents, even
though dependency jurisdiction subsequently was terminated, could prejudice the
parents in the future if any issue arose concerning their care of any of their
children. If there was insufficient
evidence to support the jurisdictional order, reversal of the order would
eliminate that prejudice and remove the sword of Damocles hanging over
them. Therefore, the parents’ appeal is
not moot. (In re Joshua C., supra,
24 Cal.App.4th at p. 1547.)
B. Sufficiency
of the Evidence to Support Jurisdiction
The parents contend the jurisdictional
order must be reversed because there was no evidence that, at the time of the
jurisdiction/disposition hearing, the parents were unfit or neglectful or that
dependency jurisdiction was necessary to protect Cassandra from the risk of
serious physical harm or illness. We
agree.
Section 300, subdivision (b) provides
in relevant part that a child is within the jurisdiction of the juvenile court
and may be declared a dependent child of the court if “[t]he child has
suffered, or there is a substantial risk that the child will suffer, serious
physical harm or illness, as a result of the failure or inability of his or her
parent or guardian to adequately supervise or protect the child. . . . The child shall continue to be a dependent
child pursuant to this subdivision only so long as is necessary to protect the
child from risk of suffering serious physical harm or illness.” (§ 300, subd. (b).) To declare a child a dependent child of the
court under this subdivision, the evidence must establish three elements: “‘“(1) neglectful conduct by the parent in
one of the specified forms; (2) causation; and (3) ‘serious physical harm or
illness’ to the child, or a ‘substantial risk’ of such harm or illness.” [Citation.]’
[Citations.]” (
129, 135; accord, In re Precious D.
(2010) 189 Cal.App.4th 1251, 1259.) “The
third element ‘effectively requires a showing that at the time of the
jurisdiction hearing the child is at substantial risk of serious physical harm
in the future (e.g., evidence showing a substantial risk that past physical
harm will reoccur). [Citations.]’ [Citation.]”
(In re David M. (2005) 134
Cal.App.4th 822, 829.) We review the
juvenile court’s jurisdictional findings for sufficiency of the evidence. (Id.
at p. 828.)
In the present case, there was
evidence the parents may have been slow to appreciate the extent of Cassandra’s
mental health issues and her need for medication and/or significant
professional assistance to overcome those issues. But even so, the evidence shows that the
parents did what was necessary to protect Cassandra and her siblings from
physical harm by calling the police and/or the PMRT when they were unable to
control Cassandra, or having her hospitalized when she threatened to kill
herself. Thus, there is some doubt that
the parents’ conduct in not seeking more substantial psychological treatment
(including medication) constituted neglect that caused a risk of harm to Cassandra. (See In
re Precious D., supra, 189
Cal.App.4th at p. 1254 [“parental unfitness or neglectful conduct must be shown
in order to assert dependency court jurisdiction under that part of section
300(b) providing for jurisdiction based on the parent’s ‘inability . . . to
adequately supervise or protect the child’”].)
Even if that conduct were sufficient
to support a finding of neglect, however, the evidence shows that by the time
of the jurisdiction/disposition hearing, the parents had accepted that
Cassandra needed medication to control her behavior and had started the process
to obtain AB3632 services for her from the Department of Mental Health so she
could receive more effective long-term treatment. Although there might have been some concern on
the part of the juvenile court about Cassandra’s lack of progress in her
treatment up to that point, that lack of progress was due to Cassandra’s
refusal to attend school or go to therapy, not the parents’ unfitness or
neglect. In short, because there was no
evidence that at the time of the jurisdiction hearing there was a substantial
risk of serious harm to Cassandra caused by the parents’ unfitness or neglect,
the juvenile court’s jurisdictional order must be reversed.
The
order declaring Cassandra a dependent child of the court is reversed.
WILLHITE,
Acting P. J.
We
concur:
MANELLA,
J.
SUZUKAWA, J.
undesignated statutory references are to the Welfare and Institutions Code.
mother and father filed separate notices of appeal, mother joined in father’s
opening brief on appeal.
